P L D 1984 Federal Shariat Court 132 (PLP)

Muhammad Aslam Uns for the State. Date of hearing : 9th May, 1984. The appellant was tried try the Magistrate First Class, Toba Tek Singh and convicted under Article 11 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order), and sentenced to suffer R.1 for six months and whipping numbering fifteen stripes fox his having been found in an intoxicated state on 22‑9‑1982 at about mid‑night in cinema compound situated in Pit Mahal town. He had filed an appeal before the Sessions Judge, Toba Tek Singh against his conviction and sentences, which was dismissed on 21‑9‑1983.

2. At the very outset it may be stated that after the dismissal of his appeal be was sent to Jhang Jail for serving out the sentence. The Super intendent of District Jail Jhang wrote a letter in respect of Jail appeal sought to be filed by the appellant in which it was stated that copy of the judgment of the M.I.C., Toba Tek Singh, though asked for from the Court, bad not been supplied to them yet and in view of the short sentence and also the sentence of whipping, the aforesaid Superintendent was required to arrange for submission of attested copy of the judgment of the trial Court. Since, the appeal before the Sessions Court had been dis missed, the revision petition was likely to be fixed before this Court only on the receipt of judgment of the trial Court and orders for suspension of the sentence of whipping pending fixation of the revision petition were passed on 29‑1‑1984 and seine to the Superintendent Jail. In the meantime the appellant having served out the sentence of imprisonment was released by the jail authorities had notice was ordered to be issued to the appellant before hearing the instant Jail appeal. Raja Abdur Rahim was appointed as counsel for the pauper petition in the interest of justice, at State expense.

3. A perusal of the record shows that Excise Inspector, fjjad Hussain Shah of Pir Mahal, Dr. Muhammad Iqbal Zaidi, Meal Officer and A. S. I. Muhammad Hanif were examined by the prosecution before the states was recorded and he tress convicted as aforesaid. Excise Inspector Sajjad Hussain Shah stated that on 22‑9‑1982 when be with S. H. O. Muhammad Akram and two police constables were passing by the cinema house of Pir Mahal he heard noise from the side of the canteeen, inside the courtyard of the cinema home, and found that the petitioner was speaking loudly and creating commotion. As his mouth smelted of liquor, he was sent to Medical Officer and on getting report from the Medical Officer that be had taken intoxicant drink, a report was registered at the Police Station and after investigation the petitioner was sent up for trial. A.S.I. Muhammad Hanif, who received the report registered the same and went to the scene of offence. He prepared the sketch of the scene of the offence.

4. As already stated, the rest of the witnesses including the S. H. O. Muhammad Akram and the Police constables were not examined as prosecution witnesses at the trial of the petitioner and the petitioner himself denied the allegation that he had taken liquor. It was his can, that be had gone to buy cigarettes and the Excise Inspector on seeing him called him and took him to the police station. He denied that be had been taken before Dr. Muhammad Iqbal Zaidi. He produced before the Court permit of Medical officer for permitting him to purchase specified quantity of the opium pills as it was his defence that he was an opium addict.

5. Raja Abdur Rahim, the learned counsel for the petitioner, has pointed out that although in his cross‑examination Excise Inspector Sajjad Hussain Shah, who was examined as P. W. 1 admitted that the owner of the canteen and the some other persons were also present, no independent witness has ban examined in support of the prosecution. It is true that the incident is stated .to have taken place at about mid‑night, but it is further contended that in view of the admission of Excise Inspector Sajjad Hussain this plea was taken before the trial Court and also before the Sessions Court but the learned Magistrate was of the opinion that since it was not case of search or any sort: of raid, it was not necessary to examine independent witnesses with re gard to the matter. It has, however, been contended by the learned counsel for the petitioner, that even for the purpose to show that the provisions of Article 12 of the Order were complied with, it was for the prosecution to give the best evidence available in respect of the alleged conduct of the petitioner and to establish that in being asked the petitioner had accom panied the Excise Inspector to the authorised Medical Officer for his own examination. It may be observed that under the aforesaid Article no police officer shall detain or arrest any person on suspicion that he has taken an intoxicant in violation of Article 8 or Article 1 l unless he has asked such person to accompany him an authorized Medical Officer for examination and such person either refuses to so accompany him or, having been examined by the medical practitioner, is certified to have taken an intoxicant. Obviously, it is not the case of the prosecution that the petitioner was arrested since according to the Excise Inspector Sajjad Hussain, the very report of the offence was sent to the police station after receiving the so‑called certificate of the authorized Medical Officer. Dr. Iqbal Zaidi, Medical Officer, who was examined, made at the time on the very letter of request for examination of the petitioner written by Excise Inspector, Sajjad Hussain, an endorsement that he bad been brought by Muhammad Younis F. C. of Police Station Pir Mahal at about 12‑30 a. m and that he found his face flushed, both eyes red, and congested and his pupils contracted and further that in his opinion he had drunk alcohol. Raja Abdur Rahim, the learned counsel for the petitioner, has pointed out that it is admitted position that the petitioner was taken to the house of DP. Iqbal Zaidi at about 12‑30 at night and it is apparent from the record that the so‑called certificate had been given and that no proper examination of the petitioner was made before certifying that he had taken alcoholic drink. It is pointed out that the endorsement on the letter is so slipshod and the doctor certified that the appellant had "drunk Alcohol" instead of stating that he had taken an alcoholic drink.

6. Section 12 of the Order provided that no Police Officer shall detain or arrest any person on suspicion that he has taken an intoxicant is viol ation of Article S or Article 11 unless he has asked such person to accompany him to an authorized Medical Officer for examination. Assuming that Dr. Muhamrmad Iqbal Zaidi was such an authorized Medical Officer as mentioned in rule 5 of Punjab Prohibition (Enforcement of Hudood) Rules, 1979. that rule provides that such Medical Officcr, ‑`may examine the person referred to him under Article 12 (2) of the Order with respect to the presence of an intoxicant in his breath or blood stream or stomach. If the authorised Medi cal Officer can presume the taking or influence of the intoxicant from any other symptom such as hangover effects, mausea, headache, gastritis, thirst, generalised residual malaise, physical or mental incompetence or over‑drowsiness, euphoria, disphoria or other after affects ref taking any intoxicants, he may dispense with the aforesaid examination". It is clear that the symptoms such as mentioned in the rule had not been reported by Dr. Zaidi and, therefore, he bad to examine the person "with respect to presence of an intoxicant in his breath or blood stream or stomach" which it is obvious he did not care to do.

7. As already stated, it was the case of the petitioner that he is opium addict and was permitted by the Medical Officer to have opium pills which he had taken before coming out to get cigarettes. The aforesaid plea has no been treated very seriously by the trial as well as the appellate Courts. Symptoms, however at first stage of taking of opium have been state in Modi' Medical Jurisprudence and Toxicology, 22nd Edition, at page 41, against the subject of opium poisoning‑‑which though not very apt as the instant east not of poisoning but taking of opium as an addict reveal that there is first stage of Excitement or Euphoria during which the symptoms are, increased sense of well‑being; including loquacity or even hallucinations and reveal flushing of the 'face. The very admission of the petitioner about being a opium addict and the further fact with regard to symptoms revealed b taking opium pills create a doubt in the mind whether he had take alcoholic drink. It is also the further fact that the Excise Inspector of the a in all probability had known about the fact that the petitioner was addict who has been‑permitted to purchase opium of a particular quantity and the fact that the petitioner even in his evidence familiarly referred to him as 'Shah Sbahib' and also the fact that he was found being loquacious and noise near the canteen makes, his explanation hat he had come out to purchase cigarettes, plausible. III the instant case there is no allegation or assertion that the petitioner was at, any time seen actually drinking alcoholic into', cant by any one and the suspicion against him admittedly arose became of his loquacity and exuberant behaviour. Giving him‑‑benefit of doubt therefore, he is acquitted of the charge under Article 11 of the Order. He has already undergone R. I. for six months as for the reasons stated the appeal could not be heard and decided earlier. However, in view of the fact that the appeal bas been allowed, the further sentence of whipping numbering) 15 stripes is sot aside. M. A. K. Appeal accepted.